The First Amendment of the United States Constitution provides all citizens with the freedom of speech and assembly, permitting the expression of a wide range of opinions in a non-disruptive manner. However, multiple legal restrictions apply to freedom of expression, obvious examples including shouting “fire” in a movie theater or making threats against another person.¹ Yet, it remained a question whether the First Amendment protected the offensive speech and assembly until the Supreme Court case of Snyder v. Phelps.

While the Court ruled in favor of Westboro, its narrow focus on distinguishing speech under public or private concern overlooked significant factors of emotional distress and prior legal precedence in determining the legality of offensive speech. The Court’s decision ultimately prioritized speech’s intention over its impact.

On March 6, 2006, Lance Corporal Matthew Snyder was killed in the Iraq War. Following his death, his father Albert Snyder organized a funeral at the St. John Catholic Church in Westminster, Maryland. Earlier on the morning of the service, the Westboro Baptist Church called local authorities to inform them of their demonstration near the funeral. Protesting the funeral of a fallen soldier, Westboro Baptist Church members held up placards that read “Thank God for IEDs,” “F** Troops,” and “Thank God For Dead Soldiers.” When his family arrived at the service, his father recalled seeing the tops of pickets, but did not learn until later that night what group had gathered outside the funeral.² 

The Westboro Baptist Church, founded by Fred Phelps, is a religious organization notorious for protesting funerals across the country. Believing that God kills military members as punishment for the United States’s tolerance of homosexuality and “morals in violation of biblical dictates,” the Westboro Baptist Church views soldiers’ deaths as “divine retribution.” After the funeral, member, daughter, and attorney Shirley Phelps-Roper claimed they protested because “[they] need[ed] to help these families connect the dots.”³ From 1991 to 2008, the Westboro Baptist Church led over 34,000 anti-gay demonstrations, many of which have created public outcry.⁴ Before Snyder’s funeral demonstration, the group led a highly condemned protest at the funeral of Matthew Shepard, a young man who was beaten to death for his sexuality. At his funeral, members chanted “Matt is in hell.”⁵ Westboro does not limit its comments to solely funerals, though. The week of the Snyder funeral, one of Phelps’s daughters posted an “epic” on the church’s website that blamed Albert Snyder for the way he raised his son, writing “In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.”⁶ Another comment targeted how the Snyders taught him “to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity.”⁷ 

In response to Westboro’s funeral demonstrations, local communities assembled to prevent them from upsetting grieving families. Initially, Snyder could not see the protest due to the Patriot Guard Riders, a group of motorcyclists who stood shoulder to shoulder to block Westboro members. One witness wrote, “They were there as a human buffer to protect the family.”⁸ While many were outraged by the protests, some lawyers argued the Westboro Baptist Church had a right to exercise free speech, no matter how insensitive, whereas some lawyers argued that even if Westboro had the right to protest funerals, “surely the very real risks of compounding mental anguish and physical ailments with the additional stress and trauma that comes from disruptive protesters should not be ignored.”⁹

Snyder sued Phelps on five charges: intentional infliction of emotional distress, defamation, publicity given to private life, intrusion upon seclusion, and civil conspiracy. Testifying in the District Court of Maryland, Snyder professed “They turned this funeral into a media circus and they wanted to hurt my family. They wanted their message heard and they didn’t care who they stepped over. My son should have been buried with dignity, not with a bunch of clowns outside.”¹⁰ 

In October 2007, Phelps requested a Motion for Summary Judgment on the two claims of defamation and publicity given to public life. The District Court agreed, throwing out the charge of defamation, ruling that the website posting would not open Snyder to further hatred or scorn. It also dismissed the charge of publicity given to private life as Westboro “had not published any information that had previously been private”¹¹ As for the remaining three claims, the jury ruled in favor of Snyder, holding Westboro liable for a total of $10.9 million in a combination of both compensatory and punitive damages. The Westboro Baptist Church appealed the verdict to the Fourth Circuit Court of Appeals, which reversed the decision of the Maryland District Court on grounds that Westboro’s speech involved public concern rather than private. It also added that the hyperbolic language Westboro used could not be disproven.¹² 

After the Court of Appeals’s reversal, the Supreme Court granted a writ of certiorari and agreed to hear the case, provoking a wave of legal actions across the country. In 2006, eighteen states wrote legislation in response to the increasing frequency of funeral protests from the Westboro Baptist Church. States attempted to create “buffer zones,” establishing prohibited times and places to protest funerals.¹³ Forty-three senators and forty-eight states wrote briefs in support of Snyder.¹⁴ The largest executive move came from President George W. Bush in 2006 when he passed the Respect for America’s Fallen Heroes Act, prohibiting demonstrations on the property of the Arlington National Cemetery.¹⁵ As the Court prepared to hear oral arguments, most states had already established laws to prevent funeral protests, but it was now up to the Supreme Court to determine if they were legal. 

In addition to public pressure, the Court had to answer significant legal questions arising from the case on the extent of the First Amendment. Was the Westboro Baptist Church’s speech a matter of public or private concern? Snyder claimed that Westboro’s assembly at his son’s funeral meant that the phrases on their pickets directly applied to his son, making it a private matter, whereas Phelps argued that the sayings on their pickets contained material that applied to conversations of society that could apply to anybody. If the signs were a matter of public concern, the defense could easily argue for protection under the First Amendment.¹⁶ Whether Snyder was part of a “captive audience,” forced to listen to Westboro’s words, was another consideration at stake. If the Court ruled yes, his chances for recovery of emotional distress were high. Furthermore, did freedom of speech protect Westboro from liability? In all, the Court had a more abstract question to answer: what are the limits of the First Amendment?

After deliberations, the Court ruled in favor of Phelps in an 8-1 majority on March 11, 2011. Chief Justice John Roberts wrote the majority opinion, with Justices Scalia, Kennedy, Thomas, Ginsburg, Sotomayor, and Kagan joining.¹⁷ The opinion began with a review of the Westboro Baptist Church’s history and their protest of the Snyder funeral, laying out the facts of the case. The Court first addressed how a plaintiff could recover a charge of intentional infliction of emotional distress (IIED), asking the question that drives the majority of the opinion: does Westboro’s speech fall under private or public concern? Although the Court acknowledged that the boundaries for this test are not well defined, they ultimately thought Westboro’s speech fell under public concern. The Court defined speech as involving public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community.” The most important test for the Court to distinguish speech as public or private was by looking at its “content, form, and context.” The three-part test came from the free speech case Connick v. Myers, in the 1980s. The Court reassured that it must look at all three categories when reviewing the facts of the case.¹⁸

When looking at the content of the speech, the Court ruled that the material displayed on Westboro’s signs related to issues that concerned society. The Westboro Baptist Church’s belief in God’s divine retribution for homosexuality as well as other grievances involving the Catholic church and the fate of the nation highlighted issues “that are matters of public import.” Their messages conveyed their positions on these societal issues, thus falling under public concern.¹⁹

The Court then looked at the context of the speech. During his oral argument before the Court, Snyder argued that the context of the case was a funeral setting, innately making it a private matter. The majority disagreed, claiming that the Westboro Baptist Church had protested multiple funerals before Matthew’s and thus, it was not an isolated event targeting him. Furthermore, the Court argued that Westboro had protested on public land, implying that the context of Westboro’s demonstration was a public matter.²⁰

The Court also examined Snyder’s charge of intentional infliction of emotional distress, and particularly at the Maryland jury’s verdict ruling in favor of Snyder. The jury found the nature of Westboro’s speech to be outrageous enough to inflict severe pain on the plaintiff. The Court asserted that a jury is “unlikely to be neutral with respect to the content of [the] speech” as it is not an objective measure of speech. Therefore, the jury had no right to rule in favor of the plaintiff for IIED on a subjective basis. The Court’s conclusion on the charge of IIED answered the question of if offensive speech is protected under the First Amendment. The majority ruled, yes.²¹ 

In the final part of the opinion, the Court dismissed the charges of intrusion upon seclusion and civil conspiracy. The abstract question of this charge was whether or not Snyder was a captive audience, forced to listen and watch the Westboro Baptist Church’s chanting and placards. The Court said that Snyder was not a “captive audience” and that the captive audience doctrine is “applied sparingly.” The majority believed that the burden lies on the viewer to avert his eyes, essentially dismissing both charges.²² 

In concluding the opinion, the majority commented on the power of speech, writing that “It can…move them to tears of both joy and sorrow, and—as it did here—inflict great pain,” acknowledging Snyder’s suffering, even though they ruled against his claim of IIED. The majority defended their stance by arguing that the Court cannot punish those expressing their views as it would threaten the First Amendment, thus shielding Westboro from liability.²³ 

The majority’s opinion recognized the offensive nature of Westboro’s protest and the pain it caused an already grieving father, but it did not attempt to make an exception by supporting grief over law.²⁴ The Court’s analysis of the First Amendment applied to Snyder v. Phelps demonstrates its central concern of public or private matters as the foundation for most of the speech’s constitutional protections. Some issues arise from the approach of defining public interest as protections given to private matters remain unclear. The test to determine the status of the speech by looking at its “content, form, and context” does not truly differentiate the two realms and could contain elements of both. Despite Breyer addressing some of these problems in his concurring opinion, the majority took a simple approach by reviewing speech under matters of public concern, ultimately holding that the First Amendment protects highly offensive speech.²⁵

Justice Breyer wrote a brief concurring opinion due to an issue he found with Justice Roberts’s approach to the case. His main concern regarded that the majority’s analysis was limited to Westboro’s protest and ignored other considerations such as television broadcasting or internet postings, alluding to the “epic” posted on Westboro’s website. He also notes that a state does have the power to regulate picketing on matters of public concern, which the majority did not consider, referring to free speech jurisprudence of the “fighting words” doctrine.²⁶ Breyer also includes a hypothetical situation in his concurrence to ask whether the majority is holding unreasonable limits of liability for IIED, where Person A assaults Person B to gain publicity from its result. Breyer claims that there are some exceptions given the unlawful actions of Person A. Although Breyer reaches the same conclusion as the majority, his concurrence ultimately attempts to show the issues that stem from the majority’s narrow analysis of the case and attempts to provide insight into the other considerations at play.²⁷

In a strong, six-part dissent against the majority opinion and Justice Breyer’s concurrence, Justice Samuel Alito employed a more sympathetic approach in favor of Snyder. He attacked the majority’s central argument that Westboro’s speech fell into the public sphere, as he saw the protest as a direct attack on the Snyder family. He also called out the majority for not disputing the emotional distress Snyder endured and rather gave Westboro protection for the attack. Alito explained that although the requirements of the IIED tort are difficult to meet, Phelps never disputed those elements and solely claimed protection under the First Amendment. In response to the majority’s decision, Alito noted that the Court has recognized injurious speech to recover for the IIED tort in past cases such as Chaplinsky v. New Hampshire (1942) and Cantwell v. Connecticut (1940). In addition, Alito argued that under the First Amendment, Westboro can freely express in any manner they choose, but it does not protect their right to incite injury onto private persons like Snyder. He countered the decision of the majority, asserting that the messages and context of Westboro’s protest directly involved the Snyder family, even pointing to the “epic” which the majority ignored in their decision. To reiterate his point that Snyder is a private figure, Alito claimed that the hypothetical situation that Breyer included in his opinion indeed occurred in the case. The Justice goes on to claim that Westboro intentionally attacked Snyder to gain publicity, knowing that “the media is irresistibly drawn to the sight of persons who are visibly in grief.” Alito concluded his opinion by writing, “in order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims.”²⁸

Although both opinions similarly fail to distinguish private and public figures, the majority solely concentrates on the content of Westboro’s speech, whereas Alito considers both content and its effects on the parties involved. Alito strikes down each of the majority’s arguments, especially its method of determining Westboro’s speech as a matter of public interest. From Alito’s perspective, the Court’s tolerance of Westboro’s speech may allow the principles of free speech to flourish, but allows harmful speech to persist.

The majority’s focus on distinguishing between public and private concern raises an issue given that not all justices on the Court agree with this distinction. Disagreement on what determines if speech is of public or private concern may lead to potential cases involving complications in recovery for the IIED tort. According to the Court, this distinction can not be the only determining factor for recovery of the IIED tort. Snyder was not the first instance of the Court examining tort liability in relation to harmful speech. In past cases like New York Times Co. v. Sullivan (1964), the Court ensured that they reviewed the distinction between public and private figures, which realm speech fell under, and the plaintiff’s injuries. Yet in Snyder, the Court did not follow this pattern, misaligning with the Court’s past rulings that “[balanced] First Amendment interests against state tort claims.”²⁹ The Court’s choice in determining the speech as “public import”³⁰ did not encompass other important considerations the Court should have applied to cases involving free speech.

The decision of Snyder v. Phelps ultimately extended free speech to include highly controversial expressions. With a win under its belt, the Westboro Baptist Church continued to protest funerals afterward; however, various states across the country crafted legislation to prevent Westboro from picketing at funerals again, including the state of Maryland which passed its own “buffer zone” laws in response to the Court’s decision. Snyder v. Phelps sparked a national debate on the morality and limits of decency on funeral protests, balancing components of empathy and the law. The decision not only emboldened harmful speech rhetoric from the Westboro Baptist Church, but it also established an ambiguous precedent for future free speech cases with its narrow focus on the sphere of public and private concern and its negligence of the harmful intent of speech.

1. Eugene Volokh, “Permissible Restrictions on Expression,” Encyclopedia Britannica, October 15, 2020
2. Snyder v. Phelps, 562 US 443, (2011).
3. G. Davis, “At Carroll Funeral, a national protest,” Baltimore Sun, March 11, 2006
4. G. Davis, “At Carroll Funeral, a national protest,” Baltimore Sun, March 11, 2006
5. R. Chapman, “Phelps, Fred (1926–),” Culture wars in America: An encyclopedia of issues, viewpoints, and voices, 2nd ed. (Routledge, 2013).
6. Snyder v. Phelps, 562 US 443, (2011).
7. Snyder v. Phelps, 562 US 443, (2011).
8. Davis, “At Carroll Funeral.”
9. Davis, “At Carroll Funeral.”
10. CBS Interactive, “Grieving dad of dead marine sues church,” CBS News, October 26, 2007
11. Salamanca, “Snyder v. Phelps: A Hard Case That Did Not Make Bad Law,” Cato, Sup. Ct. Rev. 57, (2011): 61.
12. Snyder v. Phelps, 562 US 443, (2011).
13. Davis, “At Caroll Funeral.”
14. Ian Rosenberg, The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms, (New York University Press, 2021), 167.
15. Chapman, “Phelps.”
16. Kathleen Ann Ruane, Funeral Protests: Selected Federal Laws and Constitutional Issues, Congressional research Service,(March 2011), 1.
17. Snyder v. Phelps, 562 US 443, (2011).
18. Snyder v. Phelps, 562 US 443, (2011).
19. Snyder v. Phelps, 562 US 443, (2011).
20. Snyder v. Phelps, 562 US 443, (2011).
21. Snyder v. Phelps, 562 US 443, (2011).
22. Snyder v. Phelps, 562 US 443, (2011).
23. Snyder v. Phelps, 562 US 443, (2011).
24. Salamanca, “Snyder v. Phelps: A Hard Case That Did Not Make Bad Law,” Cato, Sup. Ct. Rev. 57, (2011): 59.
25. Salamanca, “Snyder v. Phelps,” 78.
26. Volokh, “Permissible Restrictions.”
27. Snyder v. Phelps, 562 US 443, (2011).
28. Snyder v. Phelps, 562 US 443, (2011).
29. Deana Pollard Sacks, “Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations,” 120 Yale L.J. Online 193 (2010).
30. Snyder v. Phelps, 562 US 443, (2011).